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The Lexpert CCCA Corporate Counsel Directory & Yearbook is a joint endeavour of the Canadian Corporate Counsel Association and Lexpert. It provides the most extensive listing of corporate counsel in Canada.

OCA rules on search and seizure

Criminal defence lawyers say a recent Ontario Court of Appeal decision has important implications for the law of search and seizure and when a spouse can waive the privacy rights of an accused person in a jointly owned residence.

Dan Stein says a recent Ontario Court of Appeal decision shows there are degrees of the ability of a spouse to waive a person’s Charter rights.

In R. v. Reeves, the common law spouse of the accused, Thomas Reeves, allowed the police to seize their computer from the home they co-owned without a warrant.

The police later obtained a warrant to search the computer and found child pornography on it. At the time the computer was seized, Reeves was in custody on a domestic assault charge and was barred from entering the house under a court order unless he had his spouse’s permission, which had been withdrawn.

Reeves was acquitted before trial on an application based on unreasonable search or seizure under s. 8 of the Charter, but the Court of Appeal allowed an appeal from the Crown, reversing that acquittal.

“. . . I would, unlike the application judge, admit the evidence. Consequently, a new trial for Reeves must be ordered,” Justice Harry LaForme wrote in the decision on behalf of a three-judge panel.

Brad Greenshields, the lawyer representing Reeves, says the decision is unique, as it holds the law of search and seizure can potentially not protect a house if an accused person has been temporarily barred from that dwelling for other charges.

“The case is troubling from the perspective of the common situation where a domestic party has been forced out of their dwelling home by virtue of court-imposed conditions and that the court said that the adverse spouse can provide police permission to seize suspected evidence of further alleged offences absent reasonable and probable grounds and absent an opportunity for the accused to assert a privacy interest before the state invasion occurs,” says Greenshields, a lawyer with Greenspan Partners LLP.

The police had come to the house to obtain the computer after Reeves’ spouse contacted his parole officer and alerted him to the fact there was child pornography on the computer.

She allowed the police to enter without a warrant and signed a consent form authorizing the seizure of the computer.

The police discovered 140 images and 22 videos of child pornography when they searched the computer months later after obtaining the warrant, and Reeves was subsequently charged with possessing and accessing child pornography.

The Court of Appeal found that the application judge had erred in part of the analysis concerning s. 8, which had implications for whether the evidence should be excluded.

The application judge had excluded all evidence from the computer, under s. 24(2) of the Charter, which says unconstitutionally obtained evidence should be excluded.

The Crown said this had gutted its case.

The application judge found that the police had violated Reeves’ rights as there were no “exigent circumstances” to justify the officer’s actions, they had failed to comply with a section of the Criminal Code by hanging on to the computer for four months without reporting it to a justice and because the information relied upon to get the warrant to search the computer was insufficient.

The Court of Appeal agreed that Reeves’ rights were violated when the computer was searched, but it disagreed that there was any breach when the police had originally seized the computer.

Greenshields said that this was a departure from other recent decisions.

“In effect, the court held that the police could seize from a home and forensically search a computer absent reasonable and probable grounds and that, despite all of this, the stringent test for overturning an acquittal was met,” he says.

Criminal defence lawyer Dan Stein, who was not involved in the case, says the decision shows there are degrees of waiver and degrees of the ability of a spouse to waive a person’s Charter rights.

“When it’s not exclusively your computer, your expectation of privacy might allow for the fact that someone else could give it to someone,” he says.

“The spouse gave the computer to the police, and the Court of Appeal said that’s perfectly kosher.”

Greenshields declined to say whether he would be seeking leave to appeal the decision to the Supreme Court of Canada.

“All I can really say at this point is that a lot of factors go into taking the step of seeking leave to appeal to the Supreme Court on behalf of Mr. Reeves, and that we are carefully considering them all,” he says.

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